When the President of the USA, publicly and without warning, sacked the head of his country’s federal law enforcement agency, it was the latest move in a presidency that has rarely been out of the news.
Donald Trump instantly dismissed James Comey, the then chief of the FBI, saying he was “not able to effectively lead the Bureau”. Mr Trump’s dissenters claim it was, in fact, down to Mr Comey’s re-opening of the inquiry to his alleged links to Russia.
Whatever the reason, it raises interesting points about how employers deal with the removal of an unwanted employee.
Although the option to fire an employee at will exists in the US, it doesn’t in the UK.
To reduce the possibility of an unfair dismissal claim, employers have to have a potentially fair reason for dismissing. This could be for reasons of conduct, capability, redundancy, for what is known as ‘some other substantial reason’, or if to continue employing a person would breach other legislation.
Employers must follow a fair process, which would cover a proper investigation, letting the employee have access to investigation documents, conducting a fair disciplinary hearing and giving the employee a right of appeal.
Employees also need to be informed of their right to be accompanied during the disciplinary process and to be fully aware of the charges against them.
It is best practice and highly recommended for the person carrying out the investigation to be different from the person who carries out the disciplinary hearing. If there is then an appeal, that needs to be carried out by a more senior individual who is of sufficient seniority to be able to overturn any disciplinary decision if necessary.
While undertaking this process is not quite as spectacular or headline grabbing as Mr Trump’s recent decision, it does reduce the risk of your business facing a potentially costly claim for unfair dismissal.